NEVILLE JOHN JAMES and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 547

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0450

VETERANS’ APPEALS DIVISION		)
Re		NEVILLE JOHN JAMES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date14 July 2009

PlaceBrisbane

Decision For reasons given orally after the hearing, the Tribunal affirms the decision under review.

....................[sgd]...................

Senior  Member

19.     I will now consider Mr James’ matter by examining his facts in the light of those four questions.

WHAT REMUNERATIVE WORK WAS MR JAMES UNDERTAKING?

20.     The best description of Mr James’ kind of remunerative work, given the occupations that he has undertaken, is a range of light to moderate/heavy  unskilled or semi-skilled work, in industrial and rural settings.  That is, apart from extended period of employment in the Army. 

DID WAR-CAUSED DISABILITY PREVENT MR JAMES CONTINUING TO UNDERTAKE REMUNERATIVE WORK?

21.     The medical evidence strongly supports a conclusion, from the start of the assessment period, that war-caused disability prevented Mr James continuing to undertake remunerative work.  Dr Venugopalan’s evidence satisfies me of that, and indeed, that conclusion appears to be one conceded by the respondent. 

22.     So, from the start of, and throughout, the assessment period, this question as posed in Flentjar can be answered “yes”.

IS WAR-CAUSED DISABILITY THE ONLY FACTOR PREVENTING MR JAMES UNDERTAKING REMUNERATIVE WORK?

23.     Mr James has not worked since the early 1980’s.  For more than 20 years before making his claim for special rate of pension, Mr James has undertaken no remunerative work.  

24.     This, to my way of thinking, must be viewed in the context of Mr James’ personal history.  There were several medical reports on file dealing with Mr James’ psychiatric history and referring to that personal history.  These revealed that Mr James had a troubled childhood, more particularly after his mother died when he was about eleven years of age.  During his teenage years Mr James in a boys’  home.  This, it seems to me, created the setting in which Mr James’ future working life would be framed, especially as a result of his limited secondary schooling, which I have already mentioned. 

25.     Some attention needs to be given to the conclusions reached by treating medical practitioners with reference to that background.  Dr Venugopalan observed that Mr James had few occupations for any sustained periods, other than his Army service.  Dr Ure, in a report dated 1991, had referred to Mr James’ low education level and poor motivation as factors that would limit any retraining.  Dr Ure’s report, it should be recalled, was compiled at a time when Mr James was more than 10 years out of the workforce, but only 50 years of age.  Dr Ure further stated in that report: “not fit for employment. Back a partial contributor only. Personality disorder, personal habits and poor education standards also contribute to unemployability”[5].  Dr Ure noted that Mr James was making no attempts to improve his situation.

[5]        Page 22.

26.     Though…